DATE: 20051116

DOCKET: C40670

COURT OF APPEAL FOR ONTARIO

RE:

STEPHEN ANDREW LOWE AND BERTHA PATRICIA LOWE (Plaintiffs (Appellants)) – AND –

THE GUARANTEE COMPANY OF NORTH AMERICA, TERRY L. KAUFMAN, D. & G. TRUCKING, GENERAL MOTORS OF CANADA LIMITED, JOHN DOE, RICHMOND HILL REHABILITATION CENTRE, BRUCE K. MAKOS, SUSAN WAGAR, KATHLEEN CRILLY, SHARON MILLS, AND CHRISTOPHER MCKENZIE (Defendants (Respondents))

BEFORE:

ROSENBERG, MOLDAVER AND SIMMONS JJ.A.

COUNSEL:

Edward Goldentuler

for the appellants

Joe Fidilio

for the respondents

Richmond Hill Rehabilitation Centre and Bruce K. Makos

Hugh R. Scher for the intervener National ME/FM Action Network

HEARD:

December 1, 2004

On appeal from the judgment of Justice G.D. Lane of the Superior Court of Justice dated September 2, 2003.

ENDORSMENT RE: COSTS

[1] In addition to costs of the appeal (which were dealt with in our original reasons for judgment), the appellants seek costs of the motion below on a substantial indemnity basis.

[2] We reject the appellants’ claim that costs of the motion below should be awarded on a substantial indemnity basis. Particularly in light of the motion judge’s findings concerning why the original summary judgment motion was converted into a Rule 21 motion, the partial success achieved by the respondents in striking out the appellants’ claim and the novel aspect of that part of the appellants’ claim that we permitted to proceed, in our view, the appellants have not demonstrated that the respondents’ conduct below was unreasonable or that there is any other basis for awarding costs on a substantial indemnity basis.

[3] However, given that the appellants were successful, at least in part, in maintaining their right of action, in our view, they are entitled to reasonable costs of the motion below on a partial indemnity basis. Accordingly, the costs award made by the motion judge is set aside and the appellants are awarded costs of the motion below on a partial indemnity scale fixed at $10,000 inclusive of disbursements and applicable G.S.T.

“M. Rosenberg J.A.”

“M. J. Moldaver J.A.”

“J. Simmons J.A.”